Hostile Work Environment Claim Dismissed; “Guido”, Wise Guy” Remarks & Accent Mocking Insufficient

In Siena v. Primo Pizza 84 LLC et al, No. 705179/2016, 69 Misc. 3d 1215(A), 2020 N.Y. Slip Op. 51344(U), 2020 WL 6704163 (NY Sup. Ct., Queens Cty., Nov. 05, 2020), the court, inter alia, dismissed plaintiff’s national origin-based hostile work environment claim.

After summarizing the “black letter” law in this area, the court applied it to the facts:

Here, plaintiff’s factual allegations, such as that defendants Goodman and Brill would refer to him as a “guido” or “wise guy” or imitate his accent, fall short of establishing that the ” ‘workplace [was] permeated with discriminatory intimidation, ridicule, and insult . . . that [was] sufficiently severe or pervasive to alter the conditions of the [plaintiff’s] employment and create an abusive working environment’ ” (Schenkman, 29 AD3d at 673, quoting Harris, 510 US at 21). This court is cognizant that “discrimination is rarely so obvious or its practices so overt that recognition of it is instant and conclusive, it being accomplished usually by devious and subtle means” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 183 [1978]). Nonetheless, as defendants have demonstrated the absence of a prima facie case for national origin discrimination, summary judgment dismissing that cause of action is required (see Zhao v State Univ. of NY, 472 F Supp 2d 289 [ED NY 2007] [mimicking plaintiff’s accent and comparing Turkish people to Chinese people were insufficient to establish a hostile work environment] ).

The court  compared (and contrasted) this case to Little v. National Broadcasting Co., Inc., 210 F.Supp.2d 330 (SDNY 2002), in which a defendant’s employee constantly used a “weird Spanish accent” when talking to Hispanic people, and on an occasion described Hispanics as being “very greasy.” The court held that the “comments, standing alone, were not so severe that they could alter the conditions of [plaintiff’s] employment” but that “when combined with the display of Klu Klux Klan robes and/or [a] noose, these incidents may constitute an objectively hostile environment.” Siena, 2020 WL 6704163, at *2 (citing Little, 210 F.Supp.2d at 390)).

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